April 2011

  • April 7, 2011

    By Paul M. Secunda, Associate Professor of Law, Marquette University Law School. This is cross-posted from Workplace Prof. Blog.

    Fascinating case just out from the Fourth Circuit Court of Appeals yesterday on a crucial question at the intersection of public employment law and higher education law: Does Garcetti v. Ceballos, the case that severely limited public employee free speech rights when employees speak pursuant to their official duties, apply to professors in the higher education context?

    In Adams v. Trustees of the Univ. of North Carolina-Wilmington,10-1413 (4th Cir. April 6, 2011), the Fourth Circuit held that a university professor could pursue his claims that his employer retaliated and discriminated against him based on his viewpoints, in violation of the First Amendment.  

    Adams filed suit after he was denied a promotion to the position of full professor. As part of his promotion materials, Adams included references to his service to Christian groups, and referred to being “an activist in the campus free speech movement.” Additionally, he listed numerous speeches on “Academic Freedom” as well as conservative issues in his portfolio.  Eventually, he was rejected promotion.

    Although it upheld the district court on dismissing a claim of religious discrimination under Title VII, the Fourth Circuit found that the district court had erred when it granted summary judgment to the university on the employee’s First Amendment retaliation claim. The court found that Garcetti applies to the academic context and noted that the Supreme Court expressly left open the question of whether the principles would apply in the academic context.

    With Garcetti not an obstacle, the court applied the Pickering-Connick analysis and determined that the employee spoke on a matter of public concern because Adam’s writings, which addressed topics such as academic freedom, civil rights, campus culture, sex, feminism, abortion, homosexuality, religion, and morality, qualified. On remand, the Pickering balance of interests will have to be applied, as well as the Mt. Healthy same decision test.

    This one could be heading for the Supreme Court with the interesting twist of a conservative advocacy group arguing for the expansion of First Amendment rights in public academic employment.

    Hat tip: Jon Harkavy.

  • April 7, 2011
    The Executive Unbound
    After the Madisonian Republic
    Eric A. Posner and Adrian Vermeule

    By University of Chicago law professor Eric Posner and Harvard law professor Adrian Vermeule. Read a response to this post by Ohio State University law professor Peter Shane here.

    The great debate in the United States today concerns the size of the national government. Liberals and progressives want to preserve entitlements and raise taxes; conservatives want to cut entitlements and lower taxes. However, there has been little debate about the role of the president in the national government. Conservatives have complained about a few of President Obama’s executive actions — for example, his recent decision not to defend DOMA — but these complaints have been perfunctory. Liberals have complained that Obama has endorsed large swathes of the Bush administration’s counterterror policies and legal theories — the theory that we are at war with Al Qaida, the robust state secrecy privilege, the program of targeted killings, and limited procedural protections for suspected terrorists. But few liberal commentators argue anymore that the President is abusing executive power.

    A few years ago, one might have predicted a different outcome. The intensity of the criticisms of Bush-era executive aggrandizement from liberals, joined by a handful of prominent libertarian conservatives, justified the expectation that once Democrats took power, they would cut back on presidential power, just as the Democratic Congress did in the years following the collapse of the Nixon administration. For even if Democrats trust Obama to use his powers wisely, they ought to plan for the day when a Democrat no longer occupies the presidency. That did not happen. Why not?

  • April 7, 2011

    U.S. Court of Appeals for the Ninth Circuit nominee Goodwin Liu, first nominated more than a year ago, was again approved by the Senate Judiciary Committee today.

    The vote was 10-8 along party lines, but at least one Republican Senator expressed reservations about voting against Liu.

    “I find him to be extremely bright. Actually, I really like the guy,” said Sen. Tom Coburn just before the vote. “My heart says vote for Goodwin Liu, but my brain tells me something very different.”

    He added:

  • April 7, 2011

    Right-wing talk show host Glenn Beck announced yesterday he is leaving his Fox News show later this year. The announcement comes following a steep drop in ratings in 2011.

    Last month, The New York Times’ David Carr predicted Beck would leave the network, citing growing concern among both the public and advertisers over Beck’s unsubstantiated doomsday forecasts, often invoking “Hezbollah, socialists, the price of gas, Shariah law, George Soros, Planned Parenthood, and, yes, Charlie Sheen, as he predicted a coming apocalypse.”

    In a series of episodes devoted to spearing public interest and good government groups that receive funding from George Soros, Beck accused ACS of working “in the shadows” to change the Constitution,  an allegation that was quickly dispelled by Media Matters, and ACS.

    “There are only three things wrong with his charges: he can't add, he can't read, and he can't stop himself from talking nonsense,” ACS responded.

    Other progressive groups and commentators have been quick to laud Beck’s departure announcement.

    “It’s encouraging to know that it is no longer economically viable for a major television network to support the demagogic rantings of its most unhinged conspiracy theorist,” said People for the American Way President Michael Keegan in a statement.

    "The confirmation today that the man who can't tell the difference between a socialist, a fascist, and an altruist is leaving his daily show on Fixed News, is a great moment for the collective intelligence of American discourse. But it may only be a moment,” writes Keith Olbermann.

    And George Zornick comments at ThinkProgress, “[O]nly Glenn himself is to blame for creating a show so radically divorced from reality that even Fox News couldn’t handle it.”

    For more on Beck’s error-filled attacks, visit Fox News watchdog Media Matters, which, in an ironic twist, titled a post the night before Beck’s announcement, “No End in Sight to Beck’s Lunatic Conspiracy Theories.”

  • April 7, 2011

    The Supreme Court majority this week took a significant swipe at the ability of courts to invalidate government policy that advances religious work, writes one of the nation’s leading constitutional law experts in a piece for The Huffington Post.

    Taking a look at the 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, Geoffrey R. Stone, a distinguished law professor at the University of Chicago and chair of the ACS Board, says the majority decision, authored by the Court’s conservative wing, “carved a large hole out of the Establishment Clause of the First Amendment.”

    Stone (pictured at an ACS National Convention) centers on the Supreme Court’s 1968 opinion in Flast v. Cohen, in which the Court found that taxpayers have standing to bring lawsuits challenging government action as a violation of the First Amendment’s Establishment Clause.

    He writes that the high court’s majority in a 2007 and in this week’s opinion has turned away from Flast, in the process making it almost impossible for courts to invalidate unconstitutional government support of religion. Citing Justice Anthony Kennedy’s majority opinion in the Arizona tax credit case, Stone says Kennedy concluded “that taxpayers had no standing to challenge this program because it involved tax credits rather than government expenditures. In other words, if the government had given the funds directly to the organizations, the taxpayers would have standing, but because the government instead gave the funds to individuals to reimburse them for giving money to the organizations, the taxpayers did not have standing.”

    Stone continues:

    As Justice Elena Kagan explained in a powerful dissenting opinion, joined by Justice Breyer, Ginsburg and Sotomayor, this distinction "has as little basis in principle as it has in our precedent." Indeed, the conservatives' new approach "enables the government to end-run Flast's guarantee of access to the Judiciary." As Kagan observed, under the conservatives' analysis, a state that wants "to subsidize the ownership of crucifixes" can now simply grant a tax credit to individuals who buy crucifixes. That program would effectively be insulated from constitutional challenge, not because it is constitutional, but because no one would be permitted to raise the question.

    For more analysis of the Arizona case, see this ACS guest blog post from Alex Luchenitser, a lawyer for Americans United for Separation of Church and State.